Work

A refugee’s right to work is enshrined within a number of international and regional instruments. This most notably includes the 1951 Convention, and the International Covenant of Economic, Social and Cultural Rights (ICESCR). Whilst these instruments do not guarantee employment, it provides a right to freely seek legal employment. This page will highlight the relevant articles relating to work rights in the 1951 Convention and the ICESCR. It will also explain the common barriers that prevent refugees from access to formal labor markets, and provide suggested strategies using policy advocacy and strategic litigation to advocate for refugee work rights.

Wage-earning employment

Article 17(1) of the 1951 Convention provides that refugees who are ‘lawfully staying’ in their asylum country must be afforded the right to engage in wage-earning employment on the same footing as that offered to the most preferred class of foreigner. Although the term ‘lawfully staying’ is not defined in the 1951 Convention, prominent refugee scholar Hathaway has remarked that the term refers to the situation in which a refugee enjoys ‘officially sanctioned, ongoing presence in a state party, whether or not there has been a formal declaration of refugee status’ (‘The Rights of Refugees Under International Law,’ [2005], p. 730.) Thus, once a refugee satisfies the criteria of the refugee definition, initiates his or her asylum application and has an ongoing presence in his or her host country, he or she should be considered to be ‘lawfully staying’ and benefit from the right to engage in wage-earning employment (Ibid., p.158).

Article 17(2) provides that refugees who have the following criteria are entitled to the same employment benefits as any other citizen in the asylum country.

Resided within the country of refuge for three years;

A spouse who his a national of the country of refuge; or

One or more children who are nationals of the country of refuge.

Self-employment

Article 18 provides that a refugee who is ‘lawfully in’ their first country must be afforded the right to engage in self-employment, including a wide range of entrepreneurial activities such as starting a new business. Although ‘lawfully in’ is not defined in the 1951 Convention, Hathaway notes that the terms applies to refugees who have only a temporary status (i.e. asylum seekers with pending cases), and it requires that states must treat refugees ‘as favorable as possible’ or ‘no less favorable’ than other aliens in the same position with regard to a refugee’s right to self-employment.

Labor protections

Article 24 guarantees that national labor and employment protections apply to employed refugees. It requires that refugees receive the “same treatment as it is accorded to nationals.” This language is contentious and catalyzed 15% of countries who have ratified the convention to make reservations and treat it solely as a recommendation.

International Covenant on Economic, Social and Cultural Rights

Article 6 of the ICESCR recognizes the right to work, being the “right of everyone to the opportunity to gain his living by work which he freely chooses or accepts.” The Committee that oversees the compliance of ICESCR has noted (see General Comment 20) that Article 6 applies “to everyone including non-nationals, such as refugees, asylum- seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation” (UN Committee on Economic, Social, and Cultural Rights, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights, U.N. Doc. E/C.12/GC/20 (2009), para. 30).

Despite the seemingly wide protection that Article 6 appears to offer, the provision is limited by Article 2(1) of the ICESCR which states that States are required simply to “take steps” progressively to realize the rights of the Covenant to the extent possible within the limits of their resources. Thus, as Hathaway notes, Article 6 “imposes only a duty of progressive, non-discriminatory implementation, not of immediate result” (see ‘The Rights of Refugees Under International Law, [2005], p. 740).

Article 7 discusses “the right of everyone to the enjoyment of just and favourable conditions of work.” Comment 23 discusses who is included in “everyone” to explicitly include refugees. It also expands upon who just and favorable conditions applies to and how. In this section, refugee’s particular position is discussed including their precarious position and how it increases their vulnerability to exploitation, discrimination, and abuse in the workplace. They even include a push for state parties to enact legislation that ensures refugees have work conditions no less favorable than nationals.

Given that rights may be progressively realized under the ICESCR, the Refugee Convention may be said to offer more robust protection with respect to a refugee’s right to work, as progressive realization is not a feature of the Refugee Convention (Ibid., p. 123).

Common barriers preventing access

In practice, refugees are often denied access to national labor markets altogether or are afforded access to those markets on very limited terms. The commonly reported barriers that prevent refugees from access to formal labor markets include:

Lack of a legal right to access employment/self-employment extending from the perception that opening the formal market to refugees will drive down wages for citizens;

Advocating for work rights

Useful policy advocacy arguments to advance work rights

There is a clear policy rationale to ensure that refugees are able to enjoy a right to work. Access to safe and lawful employment enables self-reliance, allows refugees to contribute to the economic growth of their host country, combats destitution and dependency, reduces risks of exploitation, and preserves human dignity. An effective work rights advocacy campaign will call upon these arguments to persuade policy makers to respect, protect and fulfill refugees’ right to employment and self-employment.

Nations, particularly those with high unemployment rates, may be particularly concerned about the effect that granting refugees access will have upon their national economy, contending that providing the right to work to refugees will inhibit its citizens’ ability to find employment. This argument, however, is predicated on a fallacy since refugees are already finding jobs, regardless of whether they are legally allowed to do so or not. (See Arevalo-Carpenter, Michelle, ‘Labor Market Arguments on Refugees’ Right to Work: A Pragmatic Rebuttal,’ [2011] for further information). Refugees find jobs out of necessity, without regard to the legality, and thus are frequently employed in unregulated areas. By passively promoting this practice, it may be argued that nations undermine the wages of their nations because illegal laborers are often paid less than those who can legally work.

Likewise, extending work rights to refugees plays a crucial role to ensure that they can meet their own needs, reducing the role of international humanitarian organizations. This further promotes the dignity and independence of refugees, permitting them to rebuild their lives in exile.

Litigation to advance work rights

When policy advocacy is ineffective in changing laws and practice relating to refugee employment, litigation may be an appropriate tool to change the legal framework. If used effectively, judicial actions at the national level may challenge the legality of denying refugees access from formal labor markets, and establish positive legal precedents. In South Africa, for example, judicial intervention was effective in ensuring that persons awaiting refugee status verification were entitled to work: Minister of Home Affairs v. Watchenuka (2004) 1 All SA 21 (SA SCA, Nov. 28 2003).

At the regional level, complaints regarding work rights violations may be lodged in the African Court/Commission of Human and People’s Rights as well as the Inter-American Court/Commission on Human Rights. At the international level, complaints may now be filed with the Committee on Economic, Social and Cultural Rights (CESCR) for violations of employment protections in the ICESCR, but only if the alleged violating nation has ratified the Optional Protocol to the ICESCR.